Implications of the Supreme Court’s fresh examination of the Sabarimala Case

♤ Will raise various key Constitutional questions: The seven-judges’ Bench will examine:

o Question of balancing the freedom of religion under Articles 25 and 26 of the Constitution with other fundamental rights, particularly the Right to equality (Article 14).

o Should “essential religious practices” or the “doctrine of essentiality” be accorded constitutional protection under Article 26 (freedom to manage religious affairs)?

Constitutional Morality

♤ The term ‘morality’ or ‘constitutional morality’ has not

been defined in the Constitution.

♤ As per the Supreme Court, the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while adhering to the other principles of constitutionalism.

♤ In the 2018 Sabarimala verdict, the majority opinion defined ‘morality’ in Article 25 to mean constitutional morality.

o Article 25 reads, “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.

♤ As per the Supreme Court, “when there is a violation of the fundamental rights, the term ‘morality’ naturally implies constitutional morality and any view taken by the courts, must be in conformity with the principles and basic tenets of the concept of Constitutional morality.”

o What is the “permissible extent” of judicial recognition a court should give to PILs filed by people who do not belong to the religion of which practices are under the scanner?

o Whether a court can probe whether a practice is essential to a religion or should the question be left to the respective religious head?

♤ The constitutional debate on gender equality will be reopened with the larger issue of whether any religion can bar women from entering places of worship.